810 F.3d 512 (7th Cir. 2016), 14-3473, United States v. Neal

Docket Nº:14-3473
Citation:810 F.3d 512
Opinion Judge:Amilton, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TYREE M. NEAL, SR., Defendant-Appellant
Attorney:For United States of America, Plaintiff - Appellee: Shane B. Kelbley, Attorney, Office of The United States Attorney, Criminal Division, Fairview Heights, IL. For Tyree M. Neal, Sr., Defendant - Appellant: Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL; Elisabeth R....
Judge Panel:Before POSNER, SYKES, and HAMILTON, Circuit Judges.
Case Date:January 21, 2016
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
SUMMARY

After pleading guilty to federal drug crimes in 2001, Neal was sentenced to prison and supervised release. He was released from prison in 2010 but was sent back in 2013 for another 18 months after violating several conditions of his supervised release. When Neal completed the new term in 2014, he asked the court to rescind a special condition of supervised release authorizing warrantless searches ... (see full summary)

 
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Page 512

810 F.3d 512 (7th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

TYREE M. NEAL, SR., Defendant-Appellant

No. 14-3473

United States Court of Appeals, Seventh Circuit

January 21, 2016

         Argued July 8, 2015.

Page 513

          Appeal from the United States District Court for the Southern District of Illinois. No. 4:00-cr-40101-06 -- J. Phil Gilbert, Judge.

         For United States of America, Plaintiff - Appellee: Shane B. Kelbley, Attorney, Office of The United States Attorney, Criminal Division, Fairview Heights, IL.

         For Tyree M. Neal, Sr., Defendant - Appellant: Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL; Elisabeth R. Pollock, Attorney, Office of The Federal Public Defender, Urbana, IL.

         Before POSNER, SYKES, and HAMILTON, Circuit Judges.

          OPINION

Page 514

          Amilton, Circuit Judge.

          Appellant Tyree Neal was sentenced to prison and supervised release after pleading guilty to federal drug crimes in 2001. He was released from prison in 2010 but was sent back in 2013 for another eighteen months after violating several conditions of his supervised release. When Neal completed the new term of imprisonment in 2014, he asked the district court to rescind a special condition of supervised release authorizing warrantless searches of his person and residence. That condition, Neal argued, is inappropriate for drug offenders. The district court denied the motion to rescind the condition, prompting this appeal regarding the search condition. But on appeal Neal also challenges for the first time the legality of all of the standard conditions of supervised release that were imposed initially in 2001 and again in 2013.

         A threshold question is whether a district court is authorized to revisit an arguably unlawful condition of supervised release if that condition could have been challenged on direct appeal but was not. We conclude that 18 U.S.C. § 3583(e)(2) permits a defendant to request relief from a condition of supervised release on substantive grounds, such as that the condition is substantively unlawful or that it no longer serves the purposes of supervised release. Section 3583(e)(2) does not authorize such late challenges based on asserted procedural errors from the time of the original sentencing, such as a claim that the court failed to provide a sufficient explanation for the condition or that there was not sufficient evidence to support the then-unchallenged condition. On the merits, however, we uphold the search condition. We also decline to address Neal's appellate challenge to the standard conditions of supervised release. He waived that claim by not raising it in the district court.

         I. Factual and Procedural History

         Neal pled guilty to a conspiracy charge and to substantive counts involving powder and crack cocaine. In June 2001 the district court sentenced him to a total of 137 months in prison to be followed by three years of supervised release. He did not appeal the sentence. Neal was released from prison in December 2010.

         A month later, in January 2011, Neal's probation officer petitioned the district court to add a special condition of supervised release requiring Neal to submit to mental-health treatment. After a hearing the district court imposed that condition and modified another condition prohibiting Neal from possessing controlled substances unlawfully and also requiring periodic drug testing. Neal appealed the drug-testing condition. We affirmed based on Neal's history of drug abuse. United States v. Neal, 662 F.3d 936 (7th Cir. 2011).

         In December 2012 the probation officer again asked the district court to modify Neal's conditions of supervised release. The probation officer proposed a curfew, requiring Neal to be at home from 9:00 p.m. to 5:00 a.m. for six months. The probation officer also sought a special condition requiring Neal to submit to warrantless searches of his " person, residence, real property, place of business, computer or electronic communication or data storage device or media, vehicle, or any other property" if there was a reasonable suspicion of finding contraband or evidence of a violation of a supervised-release condition. Before the district court had acted on that request, however, the probation officer petitioned for revocation of Neal's supervised release based on numerous violations, including lying to the probation officer and possessing cocaine and marijuana.

Page 515

          During a revocation hearing in March 2013, Neal admitted the violations. The district court revoked his supervised release and imposed eighteen more months of prison, plus a new three-year term of supervised release to follow. The court orally imposed eight special conditions, including the search condition that the probation officer had requested. The court's written judgment also listed thirteen " standard conditions of supervised release" that were not mentioned during the hearing. These same standard conditions, with only minor differences, had been imposed at Neal's sentencing in 2001.

         Neal filed a notice of appeal, but his lawyer sought leave to withdraw on the ground that an appeal would be frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). No concern was raised about any condition of supervised release in counsel's submission or in Neal's response in opposition filed under Circuit Rule 51(b). In February 2014, we granted counsel's motion to withdraw and dismissed Neal's appeal. United States v. Neal, 556 Fed.Appx. 495 (7th Cir. 2014).

         Neal was released from prison again in June 2014 and began his second term of supervised release. Two weeks later he filed a pro se motion to modify conditions of supervised release and asked that counsel be appointed. That motion did not identify any statute or rule authorizing relief. It sought to have the special conditions of supervised release set aside as " inappropriate" but did not single out any particular condition. The district court appointed counsel, who did not file an amended motion.

         At a hearing on Neal's motion, his lawyer explained that Neal was contesting only four of the eight special conditions of supervised release. After the hearing, Neal dropped his challenges to all but the condition requiring him to submit to warrantless searches of his person and property based on a reasonable suspicion of contraband or violations of supervised release. We limit our discussion to that condition.

         Neal's probation officer testified that the search condition was necessary because Neal had failed three drug tests and had a history of deceiving probation officers and using drugs while on supervised release. Neal argued that a condition authorizing warrantless searches can be imposed only on persons convicted of sex offenses against minors, not those convicted of drug offenses. Neal also argued, citing United States v. Siegel, 753 F.3d 705 (7th Cir. 2014), that the district judge had erred in the 2013 revocation hearing by imposing the search condition without making a specific finding of necessity.

         The district court concluded that the search condition was necessary because Neal had previously used drugs while on supervised release and yet was balking at even drug treatment. The court noted that the search condition is " not a wide-open, 'I can come to your house at any time day or night'" provision. Instead, the court explained, any search must be conducted at a reasonable time and in a reasonable manner based on reasonable suspicion of finding contraband or some other evidence of a violation. Neal filed a notice of appeal and was assigned new counsel.

         II. Analysis

         On appeal Neal continues to insist that a special condition authorizing warrantless searches is appropriate only for those convicted of sex offenses against minors, not drug crimes. Neal also argues, citing United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), that a " full remand is required" because, when his present term of supervised release was imposed

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in 2013, the district court did not justify re-imposing the thirteen standard conditions. Before we can turn to these questions, we must consider under what circumstances a defendant may use a post-judgment motion to contest a condition of supervised release that could have been challenged on direct appeal but was not.

         A. Availability of Motion Under 18 U.S.C. § 3583(e)(2)

          Conditions of supervised release are part of a defendant's sentence,...

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